In a military divorce, one very important provision of the USFSPA is often overlooked, even by experienced attornies: In order for a state court to have jurisdiction over a member's retired pay, the court
must have jurisdiction over the member by:
(a) his/her residence, other than because of military assignment, in the territorial jurisdiction of the court,
(b) his/her domicile in the territorial jurisdiction of the court (which is listed on the LES), or
(c) his/her consent to the jurisdiction of the court.
Assume an unhappy couple, Johnny Soldier and his wife, Jane. Assume Johnny is stationed in Arizona, but claims Nebraska as his legal residence. Jill's legal residence is in Colorado, b/c she left Johnny and moved back in with her parents in Denver a year ago.
If Jane files for divorce in Colorado, the court would not be allowed to divide Johnny's military retired pay unless Johnny consents to the jurisdiction of the court (assuming the couple had no joint-residential ties in Colorado).
If Jane files for divorce in Arizona (where Johnny is stationed), the matter is more complicated. Since Arizona's Constitution prohibits legal residency from being established merely by being stationed in Arizona, an Arizona court would not have jurisdiction.
Jurisdiction is a very tricky issue. Unless care is taken, one can "consent" to the court's jurisdiction merely by contacting the court, or responding to a summons. Before replying to any correspondence from a court which may not have jurisdiction over your retired pay, it is very important that you consult with an experienced Phoenix divorce lawyer who is knowledgeable about jurisdictional issues as they apply to the Uniformed Services Former Spouse Protection Act. So if you are facing divorce,
child support or
child custody issues in the Phoenix area, please
contact us right away to schedule a free consultation.